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IN the Supreme Court of the United States ———— RICHARD G

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IN the Supreme Court of the United States ———— RICHARD G No. 11-557 IN THE Supreme Court of the United States ———— RICHARD G. RENZI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— BRIEF OF AMICUS CURIAE THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES IN SUPPORT OF PETITIONER ———— KERRY W. KIRCHER General Counsel Counsel of Record CHRISTINE DAVENPORT Senior Assistant Counsel KATHERINE E. MCCARRON Assistant Counsel WILLIAM PITTARD Assistant Counsel KIRSTEN W. KONAR Assistant Counsel TODD B. TATELMAN Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 [email protected] Counsel for Amicus Curiae the Bipartisan Legal Advisory Group, U.S. House of Representatives December 2, 2011 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ iii INTEREST OF AMICUS CURIAE ..................... 1 SUMMARY STATEMENT .................................. 3 INTRODUCTION AND BACKGROUND .......... 4 THE COURT’S SPEECH OR DEBATE JURISPRUDENCE .............................................. 4 FACTUAL BACKGROUND ..................................... 10 PROCEDURAL BACKGROUND .............................. 12 PANEL RULING .................................................. 14 ARGUMENT ........................................................ 16 I. REVIEW IS APPROPRIATE HERE BECAUSE THE PANEL’S DECISION CREATES A CIRCUIT SPLIT – EVEN IF UNNECESSARILY – ON THE QUESTION OF WHETHER THE SPEECH OR DEBATE CLAUSE PROTECTS LEGISLATIVE RECORDS ............................... 16 II. REVIEW IS APPROPRIATE HERE BECAUSE THE CIRCUIT SPLIT CONCERNS AN IMPORTANT QUESTION OF CONSTITUTIONAL LAW ............................................................ 20 CONCLUSION .................................................... 22 (i) ii TABLE OF CONTENTS—Continued Page ADDENDUM Addendum A: Order, United States v. Clemens, No. 1:10-cr-00223 (D.D.C. Apr. 27, 2011) ...................................................... 1a Addendum B: Order, United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996) ............................................................ 4a Addendum C: Order, Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) ............................ 6a Addendum D: Order, United States v. Moussaoui, No. 01-455-A (E.D. Va. Mar. 2, 2006) ........................................................ 15a Addendum E: Order, United States v. Arthur Andersen, LLP, Crim. No. H-02- 121 (S.D. Tex. May 14, 2002) ..................... 20a iii TABLE OF AUTHORITIES CASES Page Beverly Enters., Inc. v. Trump, 182 F.3d 183 (3d Cir. 1999)...................................... 3 Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995) ................................................. 6, 17, 18, 21 Doe v. McMillan, 412 U.S. 306 (1973) .... 5, 8, 9, 20 Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) ..................... 4, 5, 8, 9, 18, 20, 21 Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc) ....... 3 Gravel v. United States, 408 U.S. 606 (1972) ................................................ 4, 5, 8, 9, 20 Helstoski v. Meanor, 442 U.S. 500 (1979) .... 5 In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978)...................................... 7 In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) ................................ 3, 6 In re Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100 (D.D.C. 2006), rev’d sub nom., United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 552 U.S. 1295 (2008) ............................. 3, 6, 7, 17, 19 Kilbourn v. Thompson, 103 U.S. 168 (1880) ......................................................... 5 Light v. United States, 220 U.S. 523 (1911) ......................................................... 10 Miller v. Transam. Press, Inc., 709 F.2d 524 (9th Cir. 1983) .................................... 7 iv TABLE OF AUTHORITIES—Continued Page MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) ........... 7, 21 Pentagen Techs. Int’l, Ltd. v. Comm. on Appropriations, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (per curiam) ............................................... 7 Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) .................................................... 7 Tenney v. Brandhove, 341 U.S. 367 (1951) .. 4, 20 United States v. Arthur Andersen, LLP, Crim. No. H-02-121 (S.D. Tex. May 14, 2002) .......................................................... 7 United States v. Brewster, 408 U.S. 501 (1972) ............................................ 5, 8, 10, 20, 21 United States v. City & Cnty. of S.F., 310 U.S. 16 (1940) ............................................ 10 United States v. Clemens, No. 1:10-cr- 00223 (D.D.C. Apr. 27, 2011) .................... 7 United States v. Helstoski, 442 U.S. 477 (1979) ......................................................... 5, 8, 9 United States v. Johnson, 383 U.S. 169 (1966) .................................................... 4, 5, 8, 20 United States v. McDade, 28 F.3d 283 (3d Cir. 1994) ................................................... 3 United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996)..................................... 7, 8 v TABLE OF AUTHORITIES—Continued Page United States v. Moussaoui, No. 01-455-A (E.D. Va. Mar. 2, 2006) ............................. 7 United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C. 1981) ............................................. 7 United States v. Renzi, 651 F.3d 1012 (9th Cir. 2011) ................................................... 2, 3 United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995) ................................ 16 CONSTITUTIONAL AUTHORITIES U.S. Const. art. I, § 6, cl. 1 ........................... 1 U.S. Const. art. IV, § 3, cl. 2 ......................... 10 LEGISLATIVE AUTHORITIES Southeast Arizona Land Exchange and Conservation Act of 2005, H.R. 2618, 109th Cong. (1st Sess. 2005) .................... 10 Southeast Arizona Land Exchange and Conservation Act of 2006, H.R. 6373, 109th Cong. (2d Sess. 2006) ..................... 10 151 Cong. Rec. E1087 (daily ed. May 25, 2005) .......................................................... 10 OTHER MATERIALS The Federalist No. 51 (James Madison) ...... 1 Conrad Russell, Parliaments and English Politics, 1621-1629 (1979) ........................ 4 vi TABLE OF AUTHORITIES—Continued Page Carol Hardy Vincent, Cong. Research Serv., R41509, Land Exchanges: Bureau of Land Management Process and Issues (Nov. 29, 2010) .......................................... 10 Christopher Thompson, The Reaction of the House of Commons in November and December 1621 to the Confinement of Sir Edwin Sandys, 40 Hist. J. 779 (1997) ...... 4 Daniel Dansie, Comment, The Washington County Growth and Conservation Act of 2006: Evaluating a New Paradigm in Legislated Land Exchanges, 28 J. Land Resources & Envtl. L. 185 (2008) ............. 10, 11 Harold Hulme, The Winning of Freedom of Speech by the House of Commons, 61 Am. Hist. Rev. 825 (1956) ......................... 4 John Reeve, The Arguments in King’s Bench in 1629 Concerning the Imprisonment of John Selden and Other Members of the House of Commons, 25 J. Brit. Stud. 264 (1986) ......................................................... 4 1 INTEREST OF AMICUS CURIAE Amicus curiae the Bipartisan Legal Advisory Group of the U.S. House of Representatives – currently composed of the Honorable John A. Boehner, Speaker of the House; the Honorable Eric Cantor, Majority Leader; the Honorable Kevin McCarthy, Majority Whip; the Honorable Nancy Pelosi, Democratic Leader; and the Honorable Steny H. Hoyer, Democratic Whip – presents the House’s institutional position in litigation matters.1 This case concerns the Constitution’s Speech or Debate Clause: “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. This Clause – the protections of which apply absolutely to all Member activities within the “legislative sphere” – is a fundamental pillar of Congress’s independence. It enables Congress to serve the American people free from interference and intimidation by the Executive and Judicial Branches, and it is critically important, not only to Congress’s relationship with the other branches of the federal government, but also to its ability to perform inde- pendently its assigned constitutional role in our system of separated powers. See The Federalist No. 51 (James Madison) (“[T]he great security against a gradual concentration of the several powers in the 1 The Solicitor General and counsel of record for petitioner Richard G. Renzi received notice, 10 days prior to the due date for this brief, of the House’s intention to file this brief. All parties consented to the filing of this brief and letters of consent have been lodged with the Clerk. No counsel for a party authored this brief in whole or in part, and no person or entity other than the House has made a monetary contribution to the preparation and submission of this brief. 2 same department, consists in giving to those who administer each department the necessary consti- tutional means and personal motives
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